Exhibit 1.1(A)
Form of Note
Underwriting Agreement
CHASE MANHATTAN AUTO OWNER TRUST 200_-_
ASSET BACKED NOTES
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
Seller and Servicer
NOTE UNDERWRITING AGREEMENT
__________ __, 200_
[__________________]
As Representative of the
Several Underwriters,
[__________________]
[__________________]
Ladies and Gentlemen:
1. Introductory. Chase Manhattan Bank USA, National Association, a
national banking association (the "Bank"), proposes to form Chase Manhattan
Auto Owner Trust 200_-_ (the "Trust") to sell $____________ aggregate
principal amount of Class A-1 ____% Asset Backed Notes (the "Class A-1
Notes"), $____________ aggregate principal amount of Class A-2 ____% Asset
Backed Notes (the "Class A-2 Notes"), $____________ aggregate principal amount
of Class A-3 ____% Asset Backed Notes (the "Class A-3 Notes") and
$____________ aggregate principal amount of Class A-4 ____% Asset Backed Notes
(the "Class A-4 Notes" and, together with the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes, the "Notes").
The assets of the Trust will include, among other things, a pool of
simple interest retail installment sales contracts and purchase money notes
and other notes (the "Receivables") secured by new and used automobiles (the
"Financed Vehicles") and certain monies received thereunder on or after the
Cutoff Date (as hereinafter defined), such Receivables to be transferred to
the Trust and serviced by the Bank, as Servicer, or by a successor Servicer.
The Original Pool Balance of the Receivables as of the opening of business on
__________ __, 200_ (the "Cut-off Date") was equal to $____________. The Notes
will be issued pursuant to the Indenture to be dated as of __________ __, 200_
(as amended and supplemented from time to time, the "Indenture"), between the
Trust and _______________, _____________, as indenture trustee (the "Indenture
Trustee").
Simultaneously with the issuance and sale of the Notes as
contemplated herein, the Trust will issue $____________ aggregate principal
amount of ____% Asset Backed Certificates (the "Certificates") pursuant to the
Amended and Restated Trust Agreement to be dated as of __________ __, 200_ (as
amended and supplemented from time to time, the "Trust Agreement"), between
the Bank and _______________, as owner trustee (the "Owner Trustee"), each
representing a fractional undivided ownership interest in the Trust, which
will be sold pursuant to an underwriting agreement dated the date hereof (the
"Certificate Underwriting Agreement" and, together with this Agreement, the
"Underwriting Agreements") among the Bank and the underwriters named therein
(the "Certificate Underwriters"). The Notes and the Certificates are sometimes
referred to collectively herein as the "Securities".
Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to such terms in the Sale and Servicing Agreement to be
dated as of __________ __, 200_ (as amended and supplemented from time to
time, the "Sale and Servicing Agreement"), between the Trust and the Bank, as
Seller and Servicer.
This is to confirm the agreement concerning the purchase of the
Notes from the Bank by the several underwriters named in Schedule I hereto
(the "Underwriters"), for whom [______________] is acting as representative
(the "Representative").
2. Representations and Warranties of the Bank. The Bank represents
and warrants to, and agrees with, the Underwriters, that:
(a) A registration statement on Form S-3 (No. 333-_____) has been
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended (the
"Act"), and the Rules and Regulations under the Act (the "Rules and
Regulations"). Such registration statement, as amended on the date that such
registration statement or the most recent post-effective amendment thereto
became effective under the Act, including the exhibits thereto, is hereinafter
referred to as the "Registration Statement." The Registration Statement has
become effective, and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that purpose has
been instituted or, to the knowledge of the Bank, threatened by the
Commission. The conditions to the use of a registration statement on Form S-3
under the Act, as set forth in the General Instructions to Form S-3, and the
conditions of Rule 415 of the Rules and Regulations, have been satisfied with
respect to the Registration Statement. The Bank proposes to file with the
Commission pursuant to Rule 424(b) of the Rules and Regulations a prospectus
supplement to the Base Prospectus (as defined herein) relating to the sale of
the Securities (the "Prospectus Supplement"). The base prospectus filed as
part of the Registration Statement, in the form it appears in the Registration
Statement, or in the form most recently revised and filed with the Commission
pursuant to Rule 424(b), is hereinafter referred to as the "Base Prospectus."
The Base Prospectus as supplemented by the Prospectus Supplement is
hereinafter referred to as the "Prospectus."
(b) Except to the extent that the Representative shall have agreed
to a modification, the Prospectus shall be in all substantive respects in the
form furnished to the Representative prior to the execution of this Agreement
or, to the extent not completed
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at such time, shall contain only such material changes as the Bank has advised
the Representative, prior to such time, will be included or made therein.
(c) The Registration Statement, at the time it became effective, and
the Prospectus, as of the date of the Prospectus Supplement, complied in all
material respects with the applicable requirements of the Act and the Trust
Indenture Act of 1939 and the Rules and Regulations and did not include any
untrue statement of a material fact and, in the case of the Registration
Statement, did not omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and, in the
case of the Prospectus, did not omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading; on the Closing Date (as defined herein),
the Registration Statement and the Prospectus, as amended or supplemented as
of the Closing Date, will comply in all material respects with the applicable
requirements of the Act and the Rules and Regulations, and neither the
Prospectus nor any amendment or supplement thereto will include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the Bank makes
no representation and warranty with respect to information contained in or
omitted from the Registration Statement or the Prospectus in reliance upon, or
in conformity with, information furnished in writing to the Bank by or on
behalf of any Underwriter through the Representative specifically for use in
connection with the preparation of the Registration Statement or the
Prospectus.
(d) The Bank is a national banking association organized under the
laws of the United States, with full power and authority to own its properties
and conduct its business as described in the Prospectus, and had at all
relevant times and has power, authority and legal right to acquire, own, sell
and service the Receivables.
(e) When the Notes have been duly executed and delivered by the
Owner Trustee and, when authenticated by the Indenture Trustee in accordance
with the Indenture and delivered upon the order of the Bank to the
Underwriters pursuant to this Agreement and the Sale and Servicing Agreement,
the Notes will be duly issued and will constitute legal, valid and binding
obligations of the Trust enforceable against the Trust in accordance with
their terms, except to the extent that the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, conservatorship, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
as such laws would apply in the event of the insolvency, liquidation or
reorganization or other similar occurrence with respect to the Bank or the
Trust or in the event of any moratorium or similar occurrence affecting the
Bank or the Trust and to general principles of equity.
(f) The direction by the Bank to the Owner Trustee to execute and
authenticate the Certificates has been duly authorized by the Bank and, when
the Certificates have been duly executed, authenticated and delivered by the
Owner Trustee in accordance with the Trust Agreement and delivered upon the
order of the Bank to the Certificate Underwriters pursuant to the Certificate
Underwriting Agreement and the Sale and Servicing Agreement, the Certificates
will be duly issued and entitled to the benefits and security afforded by the
Trust Agreement.
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(g) The execution, delivery and performance by the Bank of this
Agreement, the Certificate Underwriting Agreement and the Basic Documents to
which the Bank is a party, and the consummation by the Bank of the
transactions provided for herein and therein have been, or will have been,
duly authorized by the Bank by all necessary action on the part of the Bank;
and neither the execution and delivery by the Bank of such instruments, nor
the performance by the Bank of the transactions herein or therein
contemplated, nor the compliance by the Bank with the provisions hereof or
thereof, will (i) conflict with or result in a breach or violation of any of
the material terms and provisions of, or constitute a material default under,
any of the provisions of the articles of association or by-laws of the Bank,
(ii) conflict with any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Bank or its properties,
(iii) conflict with any of the material provisions of any material indenture,
mortgage, contract or other instrument to which the Bank is a party or by
which it is bound, or (iv) result in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of any
such indenture, mortgage, contract or other instruments, except, in the case
of clauses (ii) and (iii), for any such breaches or conflicts as would not
individually or in the aggregate have a material adverse effect on the
transactions contemplated hereby or on the ability of the Bank to consummate
such transactions.
(h) When executed and delivered by the parties thereto, each of the
Sale and Servicing Agreement and the Trust Agreement will constitute a legal,
valid and binding obligation of the Bank, enforceable against the Bank in
accordance with its terms, except to the extent that the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
conservatorship, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights as such laws would apply in the event of the
insolvency, liquidation or reorganization or other similar occurrence with
respect to the Bank or in the event of any moratorium or similar occurrence
affecting the Bank and to general principles of equity.
(i) All approvals, authorizations, consents, orders or other actions
of any person, corporation or other organization, or of any court,
governmental agency or body or official (except with respect to the state
securities or "blue sky" laws of various jurisdictions), if so required in
connection with the execution, delivery and performance of this Agreement, the
Certificate Underwriting Agreement and the Basic Documents to which the Bank
is a party, have been or will be taken or obtained on or prior to the Closing
Date.
(j) As of the Closing Date, the representations and warranties of
the Bank, as Seller and Servicer, in the Trust Agreement will be true and
correct.
(k) This Agreement and the Certificate Underwriting Agreement have
been duly executed and delivered by the Bank.
3. Purchase, Sale, Payment and Delivery of the Notes. On the basis
of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Bank agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not jointly,
to purchase from the Bank, (a) at a purchase price of _______% of the
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principal amount thereof, the principal amount of the Class A-1 Notes set
forth opposite the name of such Underwriter in Schedule I hereto, (b) at a
purchase price of _______% of the principal amount thereof, the principal
amount of the Class A-2 Notes set forth opposite the name of such Underwriter
in Schedule I hereto, (c) at a purchase price of _______% of the principal
amount thereof, the principal amount of the Class A-3 Notes set forth opposite
the name of such Underwriter in Schedule I hereto and (d) at a purchase price
of _______% of the principal amount thereof, the principal amount of the Class
A-4 Notes set forth opposite the name of such Underwriter in Schedule I hereto
plus, in each case, accrued interest at the applicable Interest Rate from
__________ __, 200_ to but excluding the Closing Date.
The Bank will deliver the Notes to the Representative for the
respective accounts of the Underwriters against payment of the purchase price
in immediately available funds drawn to the order of the Bank at the offices
of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ in New York, New York at 10:00 a.m., New York
City time, on __________ __, 200_ or at such other time not later than seven
full business days thereafter as the Representative and the Bank determine,
such time being herein referred to as the "Closing Date." The Notes of each
class to be so delivered will be initially represented by one or more
definitive Notes registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC") and will be made available for inspection by
the Representative at the office where delivery and payment for such Notes is
to take place no later than 1:00 p.m., New York City time, on the Business Day
prior to the Closing Date.
4. Offering by the Underwriters. It is understood that the
Underwriters propose to offer the Notes for sale to the public (which may
include selected brokers and dealers) as set forth in the Prospectus.
5. Covenants of the Bank. The Bank covenants and agrees with the
Underwriters that:
(a) The Bank will file the Prospectus with the Commission pursuant
to Rule 424(b) of the Rules and Regulations within the time prescribed therein
and will provide evidence satisfactory to the Representative of such timely
filing. During any period that a prospectus relating to the Notes is required
to be delivered to purchasers of the Notes by the Underwriters and dealers
participating in the initial offering and sale of the Notes on the Closing
Date under the Act [(without regard to any market making prospectus required
to be delivered by any Underwriter under the Act)] (a "prospectus delivery
period"), the Bank will not file any amendments to the Registration Statement,
or any amendments or supplements to the Prospectus unless it shall first have
delivered copies of such amendments or supplements to the Representative, and
if the Representative shall have reasonably objected thereto promptly after
receipt thereof; the Bank will promptly advise the Representative or its
counsel (i) when notice is received from the Commission that any
post-effective amendment to the Registration Statement has become or will
become effective, (ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for any
additional information and (iii) of any order or communication suspending or
preventing, or threatening to suspend or prevent, the offer and sale of the
Notes or of any proceedings or examinations that may lead to such an order or
communication, whether by or of the Commission or any authority administering
any state securities or "blue sky" law, as soon as the Bank is advised
thereof, and will use its reasonable efforts to prevent the issuance of any
such order or communication and to obtain as soon as possible its lifting, if
issued.
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(b) If, at any time during the prospectus delivery period, any event
occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus in order to comply with the Act
or the Rules and Regulations, the Bank promptly will prepare and file with the
Commission (subject to the Representative's prior review pursuant to paragraph
(a) of this Section 5), an amendment or supplement which will correct such
statement or omission or an amendment or supplement which will effect such
compliance.
(c) The Bank will furnish to the Representative copies of the
Registration Statement, each preliminary prospectus supplement relating to the
Notes, the Prospectus, and all amendments and supplements to such documents,
in each case as soon as available and in such quantities as the Representative
may reasonably request.
(d) The Bank will cooperate with the Representative in arranging for
the qualification of the Notes for sale and the determination of their
eligibility for investment under the laws of such jurisdictions, or as
necessary to qualify for the Euroclear System or Clearstream Banking, societe
anonyme, as the Representative designates and will cooperate in continuing
such qualifications in effect so long as required for the distribution of the
Notes; provided, however, that neither the Bank nor the Trust shall be
obligated to qualify to do business in any jurisdiction in which it is not
currently so qualified or to take any action which would subject it to general
or unlimited service of process in any jurisdiction where it is not now so
subject.
(e) For a period from the date of this Agreement until the
retirement of the Notes, the Bank, as Servicer, will furnish to the
Representative copies of each certificate and the annual statements of
compliance delivered to the Noteholders and the independent certified public
accountants' reports furnished to the Indenture Trustee or the Owner Trustee
pursuant to the Sale and Servicing Agreement, as soon as practicable after
such statements and reports are furnished to the Indenture Trustee or the
Owner Trustee.
(f) So long as any of the Notes is outstanding, the Bank will
furnish to the Representative as soon as practicable, (A) all documents
distributed, or caused to be distributed, by the Bank to the Noteholders, (B)
all documents filed, or caused to be filed, by the Bank with respect to the
Trust with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and any order of the Commission thereunder or
pursuant to a "no-action" letter from the staff of the Commission and (C) from
time to time, such other information in the possession of the Bank concerning
the Trust and any other information concerning the Bank filed with any
governmental or regulatory authority which is otherwise publicly available, as
the Representative may reasonably request.
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(g) On or before the Closing Date, the Bank shall cause its computer
records relating to the Receivables to be marked to show the Trust's absolute
ownership of the Receivables, and from and after the Closing Date neither the
Bank nor the Servicer shall take any action inconsistent with the Trust's
ownership of such Receivables and the security interest of the Indenture
Trustee therein, other than as permitted by the Sale and Servicing Agreement.
(h) To the extent, if any, that the rating provided with respect to
the Notes by Standard & Poor's, ▇▇▇▇▇'▇ and/or Fitch is conditional upon the
furnishing of documents or the taking of any other actions by the Bank agreed
upon on or prior to the Closing Date, the Bank shall furnish such documents
and take any such other actions.
(i) For the period beginning on the date hereof and ending on the
Closing Date, unless waived by the Representative, neither the Bank nor any
trust originated, directly or indirectly, by the Bank will offer to sell or
sell notes (other than the Notes) collateralized by, or certificates (other
than the Certificates) evidencing an ownership interest in, receivables
generated pursuant to retail automobile or light-duty truck installment sale
contracts or purchase money loans.
6. Payment of Expenses. The Bank will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto, (ii) the Indenture Trustee's and Owner Trustee's
acceptance fee and the reasonable fees and disbursements of the counsel to the
Indenture Trustee and counsel to the Owner Trustee, (iii) the fees and
disbursements of ___________________, (iv) the fees of the Rating Agencies and
(v) blue sky expenses; provided, however, that the Underwriters may reimburse
the Bank for certain expenses incurred by the Bank as agreed to by the
Underwriters and the Bank.
7. Conditions to the Obligations of the Underwriters. The obligation
of the several Underwriters to purchase and pay for the Notes will be subject
to the accuracy of the representations and warranties on the part of the Bank
herein on the date hereof and as of the Closing Date, to the accuracy of the
statements of officers of the Bank made pursuant to the provisions hereof, to
the performance by the Bank of its obligations hereunder and to the following
additional conditions precedent:
(a) On or prior to the date hereof, the Representative shall have
received a letter (a "Procedures Letter"), dated the date of this Agreement of
___________________ verifying the accuracy of such financial and statistical
data contained in the Prospectus as the Representative shall deem reasonably
advisable. In addition, if any amendment or supplement to the Prospectus made
after the date hereof contains financial or statistical data, the
Representative shall have received a letter dated the Closing Date confirming
each Procedures Letter and providing additional comfort on such new data.
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(b) The Prospectus Supplement shall have been filed in the manner
and within the time period required by Rule 424(b) of the Rules and
Regulations; and prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Bank, JPMorgan Chase or ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ & Co. which, in the reasonable
judgment of the Representative, materially impairs the investment quality of
the Notes or makes it impractical to market the Notes; (ii) any suspension or
material limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange, or
any suspension of trading of any securities of the Bank, JPMorgan Chase or
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ & Co. on any exchange or in the over-the-counter market by
such exchange or over-the-counter market or by the Commission; (iii) any
banking moratorium declared by federal or New York authorities; or (iv) any
outbreak or material escalation of major hostilities or any other substantial
national or international calamity or emergency if, in the reasonable judgment
of the Representative, the effect of any such outbreak, escalation, calamity
or emergency on the United States financial markets makes it impracticable or
inadvisable to proceed with completion of the sale of and any payment for the
Notes.
(d) The Representative shall have received opinions, dated the
Closing Date and reasonably satisfactory, when taken together, in form and
substance to the Representative, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special
counsel to the Bank, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special counsel to the
Trust, and such other counsel otherwise reasonably acceptable to the
Representative, with respect to such matters as are customary for the type of
transaction contemplated by this Agreement.
(e) The Representative shall have received an opinion or opinions of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the Bank, dated the Closing
Date and reasonably satisfactory in form and substance to the Representative,
with respect to certain matters relating to the treatment of the transfer of
the Receivables from the Bank to the Trust by the Federal Deposit Insurance
Corporation and with respect to a grant of a security interest in the
Receivables to the Indenture Trustee, and an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
Finger, P.A., special counsel to the Bank, with respect to the perfection of
the Trust's and the Indenture Trustee's interests in the Receivables.
(f) The Representative shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇
& ▇▇▇▇ LLP, counsel to the Underwriters, such opinion or opinions, dated the
Closing Date and satisfactory in form and substance to the Representative,
with respect to the validity of the Notes, the Registration Statement, the
Prospectus and other related matters as the Representative may require, and
the Bank shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such matters.
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(g) The Representative shall have received an opinion of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special tax counsel to the Bank, dated the Closing Date
and reasonably satisfactory in form and to the effect (a) that under current
law the Notes will be characterized as debt, and the Trust will not be
characterized as an association (or a publicly traded partnership) taxable as
a corporation for United States federal income tax purposes and (b) that,
subject to the qualifications set forth therein, the statements made in the
Prospectus Supplement under the caption "Material Federal Income Tax
Consequences", insofar as they purport to constitute summaries of matters of
United States federal tax law and regulations or legal conclusions with
respect thereto, constitute accurate summaries of the United States federal
income tax matters described therein.
(h) The Representative shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, P.A., special counsel to the Owner Trustee, and such other
counsel reasonably satisfactory to the Representative and its counsel, dated
the Closing Date and satisfactory in form and substance to the Representative,
with respect to such matters as are customary for the type of transaction
contemplated by this Agreement.
(i) The Class A-1 Notes shall have been rated "___" by Standard &
Poor's, "___" by ▇▇▇▇▇'▇ and "___" by Fitch. The Class A-2 Notes, Class A-3
Notes and Class A-4 Notes shall have been rated "___" by Standard & Poor's,
"___" by ▇▇▇▇▇'▇ and "___" by Fitch. The Certificates shall have been rated
"___" by Standard & Poor's, "___" by ▇▇▇▇▇'▇ and "___" by Fitch.
(j) The Representative shall have received a certificate, dated the
Closing Date, of an attorney-in-fact, a Vice President or more senior officer
of the Bank in which such person, to the best of his or her knowledge after
reasonable investigation, shall state that (i) the representations and
warranties of the Bank in this Agreement are true and correct in all material
respects on and as of the Closing Date, (ii) the Bank has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, (iii) the representations
and warranties of the Bank, as Seller and Servicer, in the Sale and Servicing
Agreement and, as Depositor, in the Trust Agreement, are true and correct as
of the dates specified in the Sale and Servicing Agreement and the Trust
Agreement, (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are threatened by the Commission, (v) subsequent to the date of
the Prospectus, there has been no material adverse change in the financial
position or results of operation of the Bank's automotive finance business
except as set forth in or contemplated by the Prospectus or as described in
such certificate and (vi) the Prospectus does not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(l) On the Closing Date, $__________ aggregate amount of
Certificates shall have been issued and sold pursuant to the Certificate
Underwriting Agreement.
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(k) On the Closing Date, the Class R Certificate shall have been
issued to Chase USA pursuant to the Trust Agreement.
The Bank will furnish the Representative, or cause the
Representative to be furnished, with such number of conformed copies of such
opinions, certificates, letters and documents as the Representative reasonably
requests.
8. Indemnification. (a) The Bank will indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, to which
such Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of, or are based upon, any untrue statement or alleged untrue
statement of any material fact contained in any preliminary prospectus
supplement, the Registration Statement, the Prospectus (other than any market
making prospectus) or any amendment or supplement thereto, or arise out of, or
are based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim; provided, however, that
(i) the Bank shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of, or is based upon, an untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus supplement, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Bank by any Underwriter
through the Representative expressly for use therein and (ii) such indemnity
with respect to any preliminary prospectus supplement shall not inure to the
benefit of any Underwriter (or any person controlling any such Underwriter)
from whom the person asserting any such loss, claim, damage or liability
purchased the Notes which are the subject thereof if such person did not
receive a copy of the Prospectus (or the Prospectus as supplemented) at or
prior to the confirmation of the sale of such Notes to such person in any case
where such delivery is required by the Act and the untrue statement or
omission of a material fact contained in such preliminary prospectus
supplement was corrected in the Prospectus (or the Prospectus as
supplemented).
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Bank, its directors, each of its officers or agents who signed the
Registration Statement, and each person, if any, who controls the Bank within
the meaning of Section 15 of the Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a) of this Section 8, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in any
preliminary prospectus supplement, the Registration Statement or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Bank by such Underwriter
through the Representative expressly for use in such preliminary prospectus
supplement, the Registration Statement or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to the
indemnifying party of any action commenced against the indemnified party in
respect of which indemnity may be
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sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability which it may have hereunder
or otherwise, other than on account of this indemnity agreement. In case any
such action shall be brought against an indemnified party and it shall have
notified the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party with respect to
such action), and it being understood that the indemnifying party shall not,
in connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys, and, after notice from the
indemnifying party to the indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to the indemnified
party under subsections (a) or (b) of this Section 8 for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by the
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation.
(d) The obligations of the Bank under this Section 8 shall be in
addition to any liability which the Bank may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and each Underwriter's obligations
under this Section 8 shall be in addition to any liability which such
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Bank and to each person, if
any, who controls the Bank within the meaning of Section 15 of the Act.
9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 is for any reason held to be unavailable other than in accordance
with its terms, the Bank and the Underwriters shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Bank or the
Underwriters, as incurred, in such proportions so that the Underwriters are
responsible for that portion represented by the percentage that the
underwriting discount and commissions bear to the initial public offering
price appearing thereon and the Bank is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the Act shall have the same rights to
contribution as such Underwriter, and each director of the Bank, each officer
or agent of the Bank who signed the Registration Statement, and each person,
if any, who controls the Bank within the meaning of Section 15 of the Act
shall have the same rights to contribution as the Bank.
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10. Default of Underwriters. If any Underwriter defaults in its
obligations to purchase Notes hereunder and the aggregate principal amount of
the Notes that such defaulting Underwriter agreed but failed to purchase does
not exceed 10% of the total principal amount of Notes, the Representative may
make arrangements satisfactory to the Bank for the purchase of such Notes by
other persons, including the non-defaulting Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Notes that such defaulting Underwriter agreed but
failed to purchase. If any Underwriter so defaults and the aggregate principal
amount of the Notes with respect to which such default or defaults occur
exceeds 10% of the total principal amount of the Notes and arrangements
satisfactory to the Representative and the Bank for the purchase of such Notes
by other persons are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Bank, except as provided in Section 11. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Bank or its officers and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation or statement as to the results thereof, made
by or on behalf of the Underwriters, the Bank or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes. If for any reason the purchase
of the Notes by the Underwriters is not consummated, the Bank shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to
Section 6 and the respective obligations of the Bank and the Underwriters
pursuant to Sections 8 and 9 shall remain in effect. If the purchase of the
Notes by the Underwriters is not consummated for any reason other than solely
because of the occurrence of any event specified in clauses (ii), (iii) or
(iv) of Section 7(c), the Bank will reimburse each Underwriter for all
out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by it in connection with the offering of the Notes.
12. Notices. All communications hereunder will be in writing and, if
sent to the Representative or the Underwriters, will be mailed, delivered or
telegraphed and confirmed to the Representative at ___________________,
Attention: ___________________, or, if sent to the Bank, will be mailed,
delivered, or telegraphed and confirmed to Chase Manhattan Bank USA, National
Association, c/o Chase Manhattan Automotive Finance Corporation, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Financial Controller.
13. Successors. This Agreement will inure to the benefit of, and be
binding upon, the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all conditions
and provisions hereof are intended to be for the sole and exclusive benefit of
the parties hereto and their respective successors, and said controlling
persons and officers and directors and their heirs and legal representatives,
and for
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the benefit of no other person, firm or corporation. No purchaser of Notes
from any Underwriter shall be deemed to be a successor by reason merely of
such purchase.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same
Agreement.
15. No Bankruptcy Petition. Each Underwriter covenants and agrees
that, prior to the date which is one year and one day after the payment in
full of all securities issued by the Trust, it will not institute against, or
join any other person in instituting against, the Trust any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any Federal or state bankruptcy or similar law.
16. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
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If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to us the enclosed
duplicate hereof, whereupon it will become a binding agreement among the Bank
and the several Underwriters in accordance with its terms.
Very truly yours,
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By_______________________
Name:
Title:
The foregoing Note
Underwriting Agreement is
hereby confirmed and
accepted as of the date
first written above:
[__________________]
on behalf of itself and
as Representative
of the Several Underwriters,
named in Schedule I
By _____________________
Name:
Title:
SCHEDULE I
Principal Amount of Principal Amount of Principal Amount of Principal Amount
Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes of Class A-4 Notes
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